C epipelinepresent112013

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Communities and the FERC Process: What companies can do in light of the preemptive effects of the Natural Gas Act

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C epipelinepresent112013

  1. 1. BIG PROCESS, Small Communities How Local Governments Can Stay Relevant in A Federal Process Carolyn Elefant, Law Offices of Carolyn Elefant Washington DC
  2. 2. THE QUESTION: What is the role of local government in a national regulatory system?
  3. 3. National Pipeline Regulatory System FERC - Natural Gas Act PHMSA - Pipeline Safety Act
  4. 4. Role/Scope of FERC  Jurisdiction over siting for interstate pipelines and LNG under NGA  Certificate for pipelines (Section 7) confers eminent domain (none for LNG under Section 3)  No jurisdiction over gathering, distribution or Hinshaw (Section 1(b) NGA)  CAA, CWA, CZMA still apply  Reliance on PHMSA for safety analysis
  5. 5. Role/Scope of PHMSA  Jurisdiction over safety for interstate facilities (pipelines and gathering facilities that affect commerce)  No safety standards for intrastate pipelines regulated by state  49 U.S.C. ァ 60103(a),(b)  Certifies/regulates safety for FERC sited projects  Power only over safety, not siting  Some powers administered by states
  6. 6. THE PROBLEM: PREEMPTION
  7. 7. Two Types of Preemption Field Preemption Conflict Preemption
  8. 8. LOCAL GOVERNMENT STRATEGIES FOR SUCCESS
  9. 9. RULE 1: THINK KRYPTONITE, NOT DYNAMITE
  10. 10. Kryptonite v. Dynamite  Dynamite: Try to use local law specifically to kill a project  AES Sparrows Point (Baltimore’s proposed zoning law; not sympathetic)  Kryptonite: look for vulnerabilities in the process; preserved authority  Millennium Pipeline CZMA  Islander Pipeline CWA  Myersville - CAA (not yet successful but potential due to CAA’s EXPRESS reservation of local power)  Corps may also be sympathetic (Section 404)
  11. 11. RULE 2: FOCUS ON YOUR BACKYARD
  12. 12. Focus on Your Backyard  Know the scope of authority and maintain it  WGL v. PG County (2013) - Neither PSA nor NGA apply to instrastate facilities; county can control  On stronger ground if exercising locality’s inherent powers  TX Midstream v. Grand Prairie (5th Cir)(2010)PSA regulates safety, not siting. Locality not preempted from establishing setbacks for compressor station [NOTE - this is PHMSA case; outcome would be different under NGA]
  13. 13. RULE 3: PARTICIPATE!
  14. 14. Rule 3: Participate!      Intervene in the FERC process early If county has any unique concerns, raise them. If there are EXISTING zoning laws, make that known. Work with company if possible but involve FERC to resolve disputes Residents do not have the same power as government to raise issues - yet in many instances, they are doing the legwork. Use contacts with other government agencies
  15. 15. Contact Information Carolyn Elefant, Law Offices of Carolyn Elefant, Washington DC 202-2976100, carolynelefant.com

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